Eminent Domain: FAQs

Rusty Rumley, Senior Staff Attorney, National Agricultural Law Center
Jordan Berry, Research Fellow, National Agricultural Law Center

The issue of eminent domain has confronted the United States since before the ratification of the Bill of Rights.  Governments typically have the power to seize private property for public purposes.  The United States government allows for the taking of private property for public purposes so long as “just compensation” for the property is provided to the property owner.  This area of the law has an outsized impact on agriculture due to the fact that large amounts of privately owned property are used for agricultural purposes. As a result, questions from rural landowners often result from proposed federal, state, or local projects near their property.  This page is intended to provide resources and answers to some frequently asked questions concerning eminent domain usage on private property.   If you have a question that is not answered below, please contact us.

This information is provided for educational purposes only. If you have concerns that go beyond the scope of what has been discussed in any of the questions below, we encourage you to seek legal advice from a licensed attorney in your area. The questions are meant to provide general information only, and do not constitute any legal advice offered by the National Agricultural Law Center, nor act as a substitute for legal advice and counsel. This resource was uploaded January 29, 2026.

MAJOR TOPICS

General Principles

Q: What is “eminent domain”?

Eminent domain is the government’s power to take private property for a project that benefits the public. This includes things like roads, schools, power lines, water systems, and other infrastructure. When the government takes property, it must pay “just compensation,” which generally means the fair market value of whatever is taken. This requirement comes from the Fifth Amendment to the U.S. Constitution. Through the Fourteenth Amendment, this protection extends to takings from state and local governments as well.

Q: What types of property can be taken under eminent domain?

Eminent domain can involve land, buildings, homes, easements, or other rights connected to property. Sometimes the government only needs a small portion—for example, a permanent easement for a power pole. Courts also recognize that certain non-physical rights, like access rights, can be taken if a project requires it.

Q: Who has the authority to use eminent domain in the United States?

The federal government, states, counties, cities, and other public bodies can use eminent domain when state or federal law authorizes it. In many states, certain private companies, such as electric utilities, railroads, or pipeline operators, also have condemnation authority when they provide a public service. Exactly who has this authority depends on state law and the type of project involved.

Q: How does eminent domain differ from other government powers like zoning or regulation?

Zoning and other regulations limit how you may use your property, but they generally do not transfer ownership. Eminent domain, on the other hand, involves the government taking a property interest and requires payment of compensation. A regulation can sometimes go “too far,” and courts may treat that as a taking, but those cases are uncommon. Most of the time, only a physical acquisition, like a strip of land for a road or a permanent utility structure, is treated as a taking for compensation purposes.

Q: What is the difference between a physical taking and a regulatory taking?

A physical taking happens when the government or a company acting under government authority physically occupies or uses private land and are by far the most common form of taking. Placing a utility tower, road, or permanent pipeline easement across property is a physical taking. A regulatory taking occurs when a law limits property usage so severely that it is functionally equivalent to losing the property itself. Courts evaluate regulatory takings differently and compensation is awarded only in rare situations. Many laws, regulations and local ordinances can adversely affect property values, but those effects are not considered a regulatory taking unless almost all economic value and use is taken from the property.

For example, a taking would be physical if a transmission company places a steel tower in the corner of your hayfield. The land is physically occupied. In a regulatory taking, a new law significantly limits the usage of a piece of property which causes severe, almost total, economic harm to the property. The use of the property is severely limited, but the property is not physically occupied.

Public Use and Government Authority

Q: What qualifies as a “public use” under federal law?

Under federal law, “public use” includes traditional public projects such as roads, schools, and utilities, as well as broader “public purposes” that benefit the community. The U.S. Supreme Court has interpreted public use broadly, allowing takings that support economic development or other public objectives. States are free to adopt stricter definitions, and many have done so through legislation or constitutional amendments.

Q: Can the government transfer condemned property to a private company or developer?

Yes. The Supreme Court has held that a government may transfer condemned property to a private entity if the overall project serves a public purpose. In Kelo v. City of New London, the Court allowed a taking for economic development that involved transferring land to a private developer. Since that decision, many states have passed laws restricting or prohibiting takings for economic development, so the rules vary significantly by state.

Q: Can private utilities, power-transmission companies, pipeline companies, or railroads use eminent domain, and what does it mean to be a “common carrier?”

Many states authorize certain entities, such as electric utilities, railroads, and pipeline operators, to use eminent domain for projects that serve the public. These companies are often classified as common carriers, meaning they provide transportation or transmission services to the public under regulatory oversight. Whether a particular company has condemnation authority depends on state statutes and how the state defines “public use” for that type of infrastructure.

Q: What kinds of projects most commonly involve eminent domain?

Eminent domain is frequently used for transportation and infrastructure projects, including highways, railroads, public transit, and airports. It is also used for public utilities such as electric transmission lines, water and sewer facilities, and flood-control structures. In rural areas, pipeline projects and major transmission lines are among the most common uses of eminent domain authority.

Q: How do state laws differ in allowing or restricting eminent domain for hydrogen or carbon dioxide pipelines?

States vary widely in how they classify hydrogen or carbon dioxide pipelines for eminent domain purposes. Some states treat these pipelines similarly to oil or natural gas lines and allow condemnation if the pipeline serves a public purpose or operates as a common carrier. Others restrict or prohibit eminent domain for these projects unless specific statutory requirements are met. Because hydrogen and carbon capture technologies are relatively new, many state laws are evolving, and active legislative and regulatory debates continue.

Q: Do pipelines that cross state lines operate under state or federal eminent domain authority?

Federal authority applies to interstate natural gas pipelines, which must obtain approval from the Federal Energy Regulatory Commission (FERC) because of the Natural Gas Act. Once approved, these pipelines may use federal eminent domain.
For most other pipelines, authority generally remains at the state level, even when the pipelines cross state boundaries. Carbon dioxide and hydrogen pipelines are not included in a federal permitting framework, so eminent domain authority depends on state law like with most pipelines. As a result, multistate pipeline projects for things other than natural gas often need approval from several different state agencies.

Q: How do governments determine that taking property is necessary for a project?

Most states require a public agency or authorized company to determine that a taking is “necessary” for the project’s public purpose. This typically involves evaluating route alternatives, engineering constraints, safety considerations, and environmental impacts. Courts usually defer to the government’s determination unless the landowner can show that the decision was arbitrary, unsupported by evidence, or outside the agency’s legal authority.

Q: Can a landowner challenge whether a taking truly serves a public purpose?

Yes. Landowners may challenge the government’s assertion that the taking is for a public use. Courts review these challenges to ensure the stated public purpose is legitimate and authorized by law. However, courts generally give substantial deference to legislative judgments about public use, especially for traditional infrastructure projects.

Q: Which level of government most often uses eminent domain, and why are state and local takings more common than federal ones?

State and local governments are responsible for most condemnation actions because they manage the majority of infrastructure projects, including local roads, water systems, utilities, and community facilities. Federal takings occur less frequently and are typically associated with national projects such as interstate highways, federal buildings, national parks, or military facilities.

Compensation and Valuation

Q: What is “just compensation,” and how is it determined?

“Just compensation” is the amount the government must pay when it takes private property for a public use. In most cases, just compensation equals the property’s fair market value, which is the price a willing buyer would pay a willing seller in an open market. Compensation typically reflects the property’s highest and best use, even if the owner was not currently using the land for that purpose. States may have additional rules or appraisal standards for determining compensation in condemnation proceedings and other factors can play a role in determining fair market value.

Q: How is fair market value calculated for farmland or ranchland?

Fair market value for agricultural land is generally based on comparable sales of similar farmland or ranchland in the area. Appraisers consider factors such as soil quality, topography, access to roads, water availability, and current agricultural productivity. Some states also allow consideration of non-agricultural potential uses—such as commercial or residential development—if those uses are reasonably probable and affect market value. In many cases, not all of the agricultural land is needed for a project and other factors such as the disruption to the rest of the farming operation can be considered when calculating damages.

Q: Are buildings, fences, irrigation systems, or other improvements included in compensation?

Yes. Permanent improvements on the property, including barns, homes, fencing, corrals, wells, grain bins, irrigation systems, and similar structures, are typically included when determining fair market value. These improvements may increase the property’s overall value or require separate valuation if they are affected differently than the surrounding land. Temporary or removable items are evaluated based on state law governing fixtures and personal property.

Q: What happens when only part of a property is taken?

When the government acquires only a portion of a property, compensation generally includes the value of the part taken and any loss in value to the remaining property. This often arises in road-widening or utility-easement cases where the owner continues to use the remaining land. The specific rules for valuing partial takings vary by state, but many states require appraisers to consider how the project affects access, drainage, shape, or overall usefulness of the remaining land.

Q: Can landowners recover for damage to the remaining portion of their property?

Yes. If a condemnation project reduces the value of the portion of property that is not taken, the owner may be entitled to severance damages. These damages cover losses caused by factors such as reduced access, changes in elevation, altered drainage patterns, noise, or other project-related impacts. The amount of compensation depends on how the project affects the market value of the remaining land. For example, the farmland is irrigated by a center pivot when a transmission line is built across the field. Even though the amount of land actually occupied by the transmission line is relatively small, the impact on field irrigation could be very costly to address and this should be included in the compensation.

Q: Are personal or sentimental values considered in determining compensation?

No. Compensation is based on fair market value, not on personal attachment, historical significance, or sentimental value to the owner. Courts apply an objective standard to ensure consistency, even when a property has deep emotional importance to a family or community. Some states, however, allow limited compensation for relocation costs under separate statutes.

Q: Can landowners receive compensation for “odd tracts” or unusable remnants left after a taking?

Often, yes. If a partial taking leaves the owner with a narrow strip, isolated corner, or otherwise unusable remnant of land, the owner may be entitled to compensation for that “uneconomic remnant.” Some states require the government to offer to purchase the remnant outright if it is no longer practical for the landowner to use it.

Q: Are losses in agricultural productivity—like soil compaction, drainage issues, or reduced access—compensable?

Many states allow compensation for project-related impacts that reduce the productivity or usefulness of agricultural land. Examples include soil compaction from construction equipment, altered drainage patterns, and loss of access for machinery or livestock. These losses are typically considered as part of the reduction in market value to the remaining property. Whether a specific type of loss is compensable depends on state law and the evidence an appraiser presents.

Q: Are attorney’s fees, costs, or interest ever recoverable in an eminent domain case?

This varies by state. Some states allow landowners to recover attorney’s fees or litigation costs if the government’s initial compensation offer was too low or if the owner successfully challenges the government’s right to take. Others allow interest on compensation awards that are delayed. Federal law also provides for interest and certain expenses in specific types of takings. Landowners should review state statutes or work with a knowledgeable attorney to determine what additional recovery may be available.

The Eminent Domain Process

Q: What procedures must the government follow before taking property, and how do these vary by state?

Before using eminent domain, most states require the government or an authorized company to provide notice to the landowner, obtain an appraisal, and make a good faith offer to purchase the property. Some states require public meetings, environmental reviews, or project-specific findings before a condemnation can proceed. Because these procedures are set by state law, the steps vary widely and landowners or their attorneys should review their state statutes for specific requirements.

Q: How do state condemnation procedures differ from federal?

Federal condemnations follow procedures in the federal Declaration of Taking Act and related statutes. These rules allow the federal government to deposit an estimate of just compensation with the court, take title at the beginning of the case, and resolve the final compensation amount later. States use a variety of procedures, and many require additional steps before title can transfer, including specific appraisal, notice, and negotiation requirements. State law controls how the landowner may contest the taking and how compensation is determined.

Q: Can the government take land before payment is complete, and what protections do landowners have in that situation?

In many states, the government can take possession of property before the final compensation amount is decided if it follows the procedures set out in state law. These procedures usually include providing notice to the landowner, filing the case in court or through a state board, and depositing an estimated amount for just compensation. Landowners may challenge the amount of the deposit and can pursue additional compensation through the court process. Some states also allow interest to accrue on any unpaid portion of the final award.

Q: What is a “quick take,” and how does it work?

A quick take is a procedure that allows the government to obtain title or possession of property at the beginning of a condemnation case rather than waiting until the end. To use this process, the government must file a condemnation action and deposit its estimate of just compensation with the court. Once the deposit is made, the government may take possession and begin construction. The landowner may still dispute the amount of compensation, which is determined later by a judge or jury. The availability and details of quick take procedures vary by state.

Q: Who determines the amount of compensation owed to the landowner?

State and federal law create the legal process, and it can vary dramatically from one state to another. The amount of compensation may be decided by a judge or jury after considering evidence from appraisers and other experts in some states. Other states use commissioners or special masters to evaluate the property and make recommendations. The final amount depends on the fair market value of the property taken and any reduction in value to the remaining property.

Q: When does a landowner receive payment for property that has been condemned?

Payment is made either when the government deposits its estimate of just compensation with the court or when the final compensation amount is determined, depending on the procedure used. In quick take states, the deposit must be made at the start of the case, and the landowner can usually withdraw the funds while the remainder of the case proceeds. In other states, payment may not occur until the condemnation is completed and the court enters a final judgment.

Agricultural Land and Operations

Q: How does eminent domain affect working farms and ranches?

Eminent domain can affect agricultural operations by reducing the amount of usable land, limiting access for equipment or livestock, and disrupting planting or grazing schedules. Construction activity may also compact soil, change drainage patterns, or interfere with irrigation. Many states allow compensation for these kinds of impacts if they reduce the property’s fair market value. The specific effects depend on the location and nature of the project.

Q: Can farmland under a conservation or agricultural easement be condemned?

Yes. Most conservation and agricultural easements restrict the landowner’s ability to develop the property, but they do not prevent the government from using eminent domain. If the government condemns land subject to an easement, compensation must be allocated between the landowner and the easement holder. Some states require additional procedures or considerations when easement-protected land is involved.

Q: Are impacts to access roads, field entrances, or private drives compensable?

In many cases, yes. If a condemnation project reduces or eliminates access to fields, pastures, or farm roads, the landowner may be entitled to compensation for the resulting loss in value. Access is especially important for agricultural operations that rely on large equipment, livestock movement, or regular deliveries. Appraisers consider whether the project makes the remaining property less functional or harder to use.

Q: Can changes to traffic routes or road access reduce compensation?

Changes to public roads, such as adding medians or rerouting traffic, may affect how easily a landowner can reach their property. Whether these impacts are compensable depends on state law. Some states compensate for a loss of direct access, while others allow recovery only if access is completely cut off or made substantially more difficult. Minor inconveniences, such as longer travel times, are usually not compensable.

Q: Are irrigation rights, water access, or drainage easements protected under eminent domain law?

Water rights and irrigation systems are often essential to farm operations, and their loss or impairment may be compensable if it reduces the property’s value. Drainage easements may also be protected, depending on how they are recorded and used. If a project interferes with irrigation pipelines, water flow, or drainage, those impacts are typically considered when determining compensation.

Q: How do major infrastructure projects, such as pipelines or transmission lines built through eminent domain, affect soil health, drainage, and long-term yield, and can those losses be compensated?

Construction of pipelines and transmission lines can compact soil, disrupt topsoil layers, alter drainage, or damage tile systems. These impacts can reduce long-term productivity. Many states allow compensation for these effects if they lower the market value of the remaining property. Landowners may present evidence from soil scientists, agronomists, or agricultural appraisers to show how construction affects yields or long-term soil health.

Q: Can restrictions on groundwater use, pesticides, or livestock operations amount to a taking?

Most limits on groundwater pumping, pesticide use, or livestock operations are adopted under the state’s police power, which allows governments to regulate activities that affect public health and safety. These types of regulations usually do not require compensation. A landowner may claim a regulatory taking only if a restriction goes so far that it prevents the property from being used in a practical or economically viable way. Courts review these claims by looking at factors such as the economic impact of the regulation and how it affects the owner’s reasonable expectations. Successful challenges are uncommon, and most agricultural regulations are upheld as valid exercises of police power.

Federal and Special Contexts

Q: What federal laws govern relocation assistance when property is taken?

Relocation benefits are primarily governed by the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act. This law provides moving expenses, replacement housing benefits, and certain advisory services for individuals, businesses, and farms that are displaced by federal projects or by state and local projects receiving federal funding. States may have their own relocation statutes that apply to projects without federal involvement.

Q: How does the federal government handle takings for highways, energy, or infrastructure projects?

For many federal projects, agencies follow the procedures set out in the federal Declaration of Taking Act. This law allows the federal government to take title at the beginning of the condemnation case by depositing an estimate of just compensation with the court. Federal agencies must also comply with environmental and planning requirements, including the National Environmental Policy Act, before acquiring property. In some situations, the federal government works with state or local agencies to complete right of way acquisition.

Q: What rules apply when eminent domain involves tribal or trust lands?

Land held in trust for tribes or individual tribal members cannot be condemned without approval from the federal government. The process is governed by federal statutes and regulations that require additional review before a taking can occur. Some federal laws restrict condemnation on reservations entirely, while others require the consent of the tribal government. The rules depend on how the land is held and which federal agency oversees it.

A Practical Example of the Federal Takings Process

Imagine a landowner learns that a regional power company is planning a multistate transmission line that requires federal approval. After several months of environmental review, the company selects a final route and sends letters to the landowners whose property will be affected. The letter explains that the company needs a permanent easement for the line and a temporary easement for construction. It also includes an appraisal and a written offer to buy those easements. The landowner does not agree with the terms or the amount offered, so the parties are not able to reach a voluntary agreement.

When negotiations fail, the company may file a federal eminent domain case. For large energy projects, companies sometimes use a procedure called the Declaration of Taking Act. Under this process, once the company files the required documents and deposits its estimate of just compensation with the court, the company becomes the legal owner of the easement right away. Even though the company now owns the easement, the landowner can still challenge the amount of compensation. The landowner may also withdraw the deposited money while the case continues. After ownership transfers, the company can enter the property and begin work as described in the easement.

From that point forward, the court case focuses only on determining the final amount of just compensation. Both sides exchange information and hire experts to explain the value of the property and how the easement affects it. The landowner may rely on photographs, maps, soil or crop data, and an appraisal that accounts for how the easement changes the property’s usefulness. The company presents its own valuation evidence as well.

Federal procedure allows the landowner to ask for a jury trial on the question of compensation. If neither side requests a jury, the judge decides the amount. In some cases, the judge may instead appoint a small commission to determine value when the property is complicated or involves multiple parcels.

When the judge, jury, or commission sets the final amount, the company must pay any additional compensation that is owed. If the final award is higher than the deposit, the landowner receives the difference, along with interest in many situations. Once payment is made, the legal case ends, although the easement itself remains in place. The company may return in the future for maintenance or repairs, and if that work causes new problems, the landowner may have options under state law or under the terms of the easement.